Wednesday, April 11, 2018
National Collegiate Athletic Association et al. v. Steven Schmitz et al., Case no. 2017-0098
Eighth District Court of Appeals
State of Ohio v. Darin K. Ireland, Case no. 2017-0344
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Jeffrey Bowshier, Case no. 2017-0936
Second District Court of Appeals (Clark County)
Did Brain-Damaged College Football Player Wait Too Long to Sue for Injuries?
National Collegiate Athletic Association et al. v. Steven Schmitz et al., Case no. 2017-0098
Eighth District Court of Appeals
ISSUES:
- Does Ohio’s two-year statute of limitations for a personal-injury tort claim start when the full extent of the injuries are revealed through a formal diagnosis?
- Is chronic traumatic encephalopathy (CTE) a latent disease or is it the latent effect of previously diagnosed head injuries?
- Does the statute of limitations for a CTE personal-injury claim begin when CTE is diagnosed?
- Is Ohio’s four-year statute of limitations for a fraud claim reduced to two years if the substance of the fraud claim is an attempt to recover damages for a bodily injury?
BACKGROUND:
From 1974 to 1978, Steven T. Schmitz played college football for the University of Notre Dame, a member institution of the National Collegiate Athletic Association (NCAA). In December 2012, he was diagnosed with chronic traumatic encephalopathy (CTE) by the Cleveland Clinic Neurology Department. He was 57 years old at the time and suffering from memory loss, early onset of Alzheimer’s disease, dementia, and other health problems. In October 2014, he and his wife, Yvette, filed a personal-injury lawsuit against Notre Dame and the NCAA in Cuyahoga County Common Pleas Court. Schmitz died in 2015. Yvette Schmitz continues the lawsuit on behalf of the estate of her former husband and to press her own claims.
The couple claims Notre Dame and the NCAA knew or should have known the risks of brain injuries college football players faced and that they ignored the risk. They also claim the NCAA schools encouraged players to use their heads when tackling and blocking and did little to address the concussions players suffered. The couple charges the institutions were negligent, committed fraud by concealment and constructive fraud, violated stated and implied contracts, and harmed the couple’s relationship (legally known as “loss of consortium.”)
Notre Dame and the NCAA asked the trial court to dismiss the case, claiming the case was filed too late given the statute of limitations. The trial court dismissed the case, and Yvette Schmitz appealed to the Eighth District Court of Appeals. The Eighth District affirmed the decision to dismiss the breach of contract claims, but reversed the decision on the negligence, fraud, and loss of consortium claims. The case was returned to the trial court to continue with further proceedings. Notre Dame and the NCAA appealed the Eighth District’s decision to the Ohio Supreme Court, which agreed to hear the case. Oral argument in this case will be conducted at a special off-site court session in Putnam County.
Legal Argument Overview
The parties dispute whether the Schmitzes waited too long to initiate a lawsuit in common pleas court. The parties also argue the distinction between characterizing CTE, a certain type of brain injury associated with football and other contact sports, as a “latent disease” or a “latent effect” of an injury. If CTE is a latent disease, it would be a separate injury or illness compared with a brain injury, such as a concussion. If CTE is the latent effect of a disease, it would be the continuation and increased severity of a brain injury that worsens over time. The distinction impacts the timing of when the player’s lawsuit must be filed to comply with Ohio’s statute of limitations for certain civil cases.
Suit Should Have Been Filed Earlier, Institutions Argue
Notre Dame and the NCAA argue that all three main claims — negligence and the two fraud counts — are actually personally injury claims, and are governed by the two-year statute of limitations in R.C. 2305.10(A). Loss of consortium is a related claim that can only move forward as long as the courts allow any of the three main claims to be considered.
The institutions contend the time limit begins to run from the time the defendant commits the “wrongful act” upon which the action is based. They also claim there is a narrow exception to the rule in R.C. 2305.10(A) called the “discovery rule,” which applies to injuries that don’t “manifest” themselves at the time of the wrongful conduct. The institutions claim that CTE and other neurological problems are the long-term effects of injuries that “manifested” immediately during Steve Schmitz’s playing days, and that if the couple is claiming Notre Dame and the NCAA are responsible for the wrongful conduct, then the conduct took place no later than 1978 when he stopped playing. If that is when the injuries occurred, the statute of limitations to file a lawsuit ended decades ago, the institutions conclude.
The institutions also maintain that even if the CTE is a new injury and the discovery rule does apply, the couple still waited too long to file the lawsuit because they should have realized Steve Schmitz was suffering from head injuries long before they received a formal diagnosis from the Cleveland Clinic. Citing the Ohio Supreme Court’s 1983 O’Stricker v. Jim Walter Corp. decision, the institutions explain the discovery rule states that when an injury doesn’t immediately manifest itself, the statute of limitations begins to run from the date that the injured person is “informed by a competent medical authority” or the date the injured person “by the exercise of reasonable diligence” should become aware of the injury.
The Eighth District ruled that CTE was a latent injury, separate from the concussions Steve Schmitz suffered while playing football, and the deadline to file a lawsuit started when he received his diagnosis from the Cleveland Clinic. Notre Dame and the NCAA counter that by exercising reasonable diligence, the Schmitzes should have known about the potential of developing CTE at least two years before the clinic’s evaluation. The institutions note that the Schmitzes argue CTE involves the slow build-up of Tau protein in the brain tissue and causes progressive decline in brain function, and that the Schmitzes must have noticed the problems long before they went to the doctor.
The institutions argue that both sides in this case claim that studies of head injuries to college athletes have been issued since the 1920s, and both sides should have been aware of the potential impact. They dispute the Schmitzes’ argument that the institutions concealed information from athletes about the potential severity of the injuries, and they noted that in 2010 the NCAA instituted a concussion protocol that required Notre Dame and all schools to have concussion management plans.
“In short, if the allegations of the Complaint are true, then by 2010 at the absolute latest, Mr. Schmitz was or should have been alerted to the possibility that head injuries can lead to significant, long-term cognitive impairment,” the institutions’ brief states.
Notre Dame and the NCAA conclude that a lawsuit claiming it was responsible for causing CTE should have been filed within two years of the 2010 NCCA rule. The institutions also dispute the fraud allegations, and argue the Schmitzes waited too long to file on those claims as well. They argue that the four-year statute of limitation for fraud in R.C. 2305.09(C) doesn’t apply because a two-year time limit applies to all claims based on bodily injury regardless of whether they are characterized as fraud claims.
Lawsuit Should Proceed, Family Asserts
The Schmitzes maintain the injury is a latent disease and the Eighth District correctly applied the discovery rule when it found that the case was filed in the appropriate amount of time. They argue the symptoms of CTE are different from the symptoms arising from concussions. They further maintain Steve Schmitz never knew he had concussions from the hits he endured while playing football and the Notre Dame staff never informed him that he suffered concussions when he felt dizzy or disoriented on the playing field. The complaint doesn’t allege this is a known injury that worsened over time, and the fact that a player suffered head injuries during playing days doesn’t prevent a lawsuit later when a diagnosis of a disease is delivered, they argue.
The couple points to the Ohio Supreme Court’s 1994 Liddell v. SCA Services of Ohio Inc. opinion as the decision that explains how to apply the discovery rule to a latent disease. In Liddell, a police officer was exposed to toxic fumes when he escorted school children out of a bus spewing toxic fumes after it overturned. He experienced breathing issues and six months later developed sinus infections. Six years later, a surgeon removed a tumor from his sinus cavity that revealed cancer. While the officer was aware he had been exposed to toxic fumes from the time of the accident, he sued the transportation company based on the latent disease. The Supreme Court applied Ohio’s discovery rule to the case and found the two-year statute of limitations didn’t begin until the officer’s cancer was revealed.
“Like the police officer in Liddell, prior to his diagnosis with CTE, Steve Schmitz did not know that he had been exposed to the risk of a latent brain disease caused by football or that he would be diagnosed with that latent brain disease at age 57,” the Schmitzes’ brief states.
The couple also disputes the claim that they must have known about the injury long before going to the Cleveland Clinic. They argue because the trial court dismissed the lawsuit at the earliest stages, discovery hadn’t taken place and the institutions are only speculating on what the Schmitzes might have known about the impact of a brain injury three decades after participation in a college sport. The Schmitzes maintain that the clock began to run on filing a lawsuit when a competent medical authority, the Cleveland Clinic, issued the diagnosis, and that the case was filed within two years of the diagnosis.
Friend-of-the-Court Briefs Filed on Each Side
An amicus curiae brief supporting Notre Dame and the NCAA’s position has been submitted by the Ohio Association of Civil Trial Attorneys. The Ohio Association for Justice has filed an amicus brief supporting the Schmitzes.
- Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the National Collegiate Athletic Association: Frederick Nance, 216.479.8500
Representing University of Notre Dame: Matthew Karis, 614.469.3939
Representing Steven Schmitz et al.: Robert DeRose, 614.221.4221
Must Veteran Prove Assault Outside Bar Was Involuntary Because of PTSD Blackout?
State of Ohio v. Darin K. Ireland, Case no. 2017-0344
Tenth District Court of Appeals (Franklin County)
ISSUE: Is the defense of blackout or automatism an affirmative defense that must be proven by a defendant by a preponderance of the evidence?
BACKGROUND:
Drew Coen spent the day of Oct. 19, 2013, golfing with his brother. Between 7 and 8 p.m., they went to a bar in Blacklick, a community east of Columbus, and played a video game, listened to a band, and drank. The Combat Motorcycle Veterans Association was holding a fundraiser at the bar that night for military veterans.
Late in the evening, Coen and his brother left the bar. Coen’s brother was called back in to close his tab. The next thing Coen said he remembered was waking up in pain at a Columbus hospital.
Darin Ireland, who served in combat in the 1991 Persian Gulf War, and his wife were at the bar that night along with Tyler Thrash. Thrash stated that Coen grabbed Ireland’s wife’s buttocks as he was leaving the bar. Thrash said he followed Coen outside and put Coen in a headlock, choked him, forced him to the ground, and told him not to touch Ireland’s wife again. The bar owner and Ireland separated the men.
Ireland heard, though, that his wife was the person Coen touched, and witnesses said they saw Ireland repeatedly punch and kick Coen while Coen was unconscious and not moving.
Thrash said that he and Ireland were drinking earlier in the bar. The bar owner stated that he and Ireland were talking before the attack and that Ireland wasn’t drunk.
Man Severely Injured
Coen suffered a broken jaw, broken nose, swelling around the eyes, knee pain, and other injuries. His blood alcohol content was 0.3. He required surgery on his skull and face, developed complications and suffered nerve damage, and deals with chronic pain and psychological injuries, according to a hospital physician.
Court Instructs Jury on Blackout Defense
In January 2014, Ireland was indicted in Franklin County for felonious assault. He pled not guilty and had a trial before a jury.
Ireland’s lawyer asked the trial court to give the jury an instruction on the defense of “blackout,” as spelled out in the Ohio Jury Instruction Manual. The prosecutor countered that “blackout,” also referred to as “automatism” or “unconsciousness,” is an affirmative defense, which would put the burden of proof regarding whether a blackout occurred on Ireland. The trial court gave the jury an instruction about “blackout” and stated that presenting this defense placed the burden of proof on Ireland. The court noted that the instruction didn’t apply to a person “who recklessly or negligently became intoxicated.”
A psychologist testified on Ireland’s behalf. In the psychologist’s professional opinion, based on an examination, Ireland experienced a dissociative episode when he attacked Coen that was caused by post-traumatic stress disorder (PTSD) stemming from the time Ireland served in war. Because of his combat experience, Ireland has “a significant capacity for dissociation,” which is an alteration of consciousness during which a person is “not consciously present at that moment” and the person’s actions are “not a manifestation of conscious thought or awareness,” the psychologist stated.
A psychologist who testified for the state determined, however, based on Ireland’s records and Ireland’s psychologist’s report, that the evidence supported substance abuse, rather than PTSD, playing a role in the assault. The psychologist acknowledged he didn’t interview Ireland and couldn’t diagnose him.
In October 2015, the jury found Ireland guilty of felonious assault, and the trial court sentenced him to six years in prison and a three-year mandatory period of postrelease control.
Appeals Court Overturns Conviction
Ireland appealed to the Tenth District Court of Appeals. One of his arguments was that the trial court wrongly told the jury that the defense of blackout or automatism was an affirmative defense that placed the burden of proof on Ireland to show that he acted involuntarily when he assaulted Coen. The Tenth District agreed and reversed the trial court’s decision. The appeals court limited its ruling to claims of involuntary acts resulting from PTSD-induced blackout.
The Franklin County Prosecutor’s Office appealed to the Ohio Supreme Court, which agreed to hear the case. The appeal will be heard at a special off-site session of the Court in Putnam County.
Felonious Assault, Burden of Proof, Affirmative Defenses
The state law regarding felonious assault states, “No person shall knowingly … [c]ause serious physical harm to another ….” According the briefs filed in this case, the Ohio General Assembly enacted the law in 1974.
Another statute, R.C. 2901.05, describes who has the burden of proof in criminal cases and discusses affirmative defenses:
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of evidence, for an affirmative defense, is upon the accused. ...
As used in this section:
An ‘affirmative defense’ is either of the following:
A defense expressly designated as affirmative;
A defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.”
Prosecutor Views Blackout as Affirmative Defense
The Franklin County Prosecutor’s Office acknowledges that a blackout or automatism defense isn’t specifically listed as an affirmative defense in Ohio law. Looking at the second definition, though, the prosecutor argues that a blackout state is a legal “excuse or justification” only known to Ireland. Given that, it qualifies as an affirmative defense that requires Ireland to prove he was in a blackout state causing him to act involuntarily when he attacked Coen, the prosecutor maintains.
The prosecutor argues that although the state is required to prove the defendant knowingly caused physical harm to another, it isn’t mandated to prove the negative – that the defendant wasn’t in a blackout state. In the prosecutor’s view, the Tenth District concluded that the state had to prove Ireland wasn’t in a blackout state during the assault only because the psychologist who examined Ireland testified that Ireland may have been in a blackout state caused by PTSD. The prosecutor notes that Ireland didn’t testify at trial.
“[T]he blackout defense is, and must be, considered an affirmative defense; because only defendant has the knowledge of whether he was blacked out,” the prosecutor’s brief states. “Only defendant has the ability to produce evidence of the alleged blackout. Therefore, it is only ‘fair[]’ that he be required to produce such evidence at trial in order to excuse or justify what would otherwise be criminal conduct, since he is the only one that can do so.”
Veteran Argues State Must Prove Crime Was Voluntary Act
Ireland stresses that most crimes, including felonious assault, require proof that the conduct was a voluntary act by a person with a “culpable mental state.” For felonious assault, the culpable mental state required to prove the crime is that the person acted “knowingly.”
Ireland contends that the “voluntary” element of the crime can’t be proven when someone is in a blackout state. That means there is a “failure of proof,” he states. Because the voluntary element of the offense is negated with a blackout or automatism defense, Ireland argues that it can’t be an affirmative offense and the burden doesn’t shift from the state to the defendant.
He cites several academic references on criminal law to support his view. In Understanding Criminal Law (2015), Ohio State University Professor Joshua Dressler wrote:
“… a ‘voluntary act’ (in the narrow, actus reus, sense of the term) should be understood to be an essential element of every criminal offense. Involuntariness – the other side of the coin of voluntariness – should not be considered an affirmative defense. … Jurisdictions that treat claims of involuntariness as an affirmative defense, therefore, improperly require the defendant who asserts such a claim … to carry the burden of persuasion regarding this fact.”
Ireland argues that the prosecutor and the Ohio attorney general ignore the voluntary element of a crime and instead focus only on the second definition of an affirmative defense. The due process clause of the U.S. Constitution (and its equivalent in the Ohio Constitution) “forbids placing upon an accused the burden of disproving any ingredient of the charged offense – even if that ingredient is a psychological condition,” his brief states.
Ireland adds that the trial judge decided there was enough evidence to justify giving the jury an instruction about the blackout defense. The state must disprove that he was in a blackout state because there was evidence that a blackout occurred, Ireland maintains. And, because state law makes a voluntary act an element of every criminal offense, he argues that the accused doesn’t need to offer evidence that he or she acted involuntarily. The defendant must be acquitted if the state fails to prove beyond a reasonable doubt that the crime was a voluntary act, he contends.
State Offices Present Arguments in Friend-of-the-Court Briefs
The Ohio Attorney General’s Office submitted an amicus curiae brief backing the Franklin County prosecutor’s position. The attorney general maintains that other appeals courts in Ohio have ruled that blackout or automatism is an affirmative defense, and the attorney general likens the blackout defense to diminished capacity defenses that have been rejected by the Ohio Supreme Court.
The Ohio Public Defender’s Office filed an amicus brief supporting Ireland. The public defender argues the question before the Court isn’t whether a jury should be instructed about a blackout defense when the evidence supports it, but instead how the jury should be guided. A jury should consider evidence of a blackout when deciding whether the state has proven a voluntary act beyond a reasonable doubt, the public defender states.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Franklin County Prosecutor’s Office: Michael Walton, 614.525.3555
Representing Darin K. Ireland: Paul Giorgianni, 614.205.5550
Was It Frivolous to Argue in Appeal that Payment Based on Auction Price for Seized Vehicles Was Improper?
State of Ohio v. Jeffrey Bowshier, Case no. 2017-0936
Second District Court of Appeals (Clark County)
ISSUE: May a court of appeals dismiss a case pursuant to the U.S. Supreme Court’s decision in Anders v. California (1967) if the appealing party presents case law in support of a claim?
BACKGROUND:
On Nov. 17, 2005, Jeffrey Bowshier drove a 1995 van to a motel parking lot to make a swap. Bowshier agreed to buy 200 pounds of marijuana in exchange for a $20,000 down payment, two kilograms of cocaine, and the titles to a 2001 pickup truck and a motorcycle. As he left in a moving truck filled with the marijuana, he was arrested.
Bowshier was indicted for drug trafficking and drug possession, and the charges included additional penalties, called specifications, that would require him to forfeit the cash, the 2001 pickup truck, and the 1995 van. The jury convicted Bowshier, and the trial court sentenced him in March 2006 to 30 years in prison.
Bowshier filed an appeal in the Second District Court of Appeals, which reversed his convictions and sentence. After a second jury trial, Bowshier was convicted again of drug trafficking and possession. In 2009, the court sentenced him to 15 years in prison and a $30,000 fine, and required forfeiture of $21,196, the pickup truck, and the van.
Jury Must Decide Forfeiture of Cash and Vehicles
In Bowshier’s second appeal, the Second District upheld his convictions and sentence but stated that the jury must consider the forfeiture of the vehicles and money. Back at the trial court, the jury found that the cash and the pickup truck could be forfeited, and the trial court determined that the van couldn’t be seized based on state rules for criminal cases. The Second District ruled, however, that the prosecutors had to prove that the forfeited items were not just used in, but were proceeds of, the drug transactions.
In July 2012, the trial court ordered that the state must return Bowshier’s property. The prosecutors argued, though, that it shouldn’t have to give back anything because Bowshier had paid none of the $30,000 fine. At a hearing about the issue, the prosecutors notified the court that the van and the pickup truck had been sold. The city of Springfield sold both vehicles in 2006 during an auction.
The pickup truck was sold for $13,351, and the van was sold for $2,601. Bowshier argued that the truck’s fair market value was $22,000 and the van was worth $4,000. The prosecutors stated the truck was worth just under $20,000 and the van’s value was between $2,601 and $4,705. The court, however, used the auction prices to value the vehicles at a combined $15,952, and found the state owed Bowshier that amount plus the $21,196 in cash, for a total of $31,148.
Appointed Lawyer Files Anders Brief
Bowshier appealed to the Second District, in part contesting the use of the auction prices to value his vehicles. His appointed lawyer filed a brief, though, stating that the appeal was frivolous. This type of brief is referred to as an Anders brief, named for the U.S. Supreme Court’s decision in Anders v. California (1967). Bowshier, acting pro se, filed his own brief with the appellate court. When an Anders brief is filed, the appeals court must conduct an independent review of the record in the case. If the court determines that any of the arguments made in an appeal aren’t frivolous, then the original lawyer withdraws from the case and a new lawyer is appointed to handle the matter.
On the forfeiture issue, Bowshier cited a 1994 ruling from the Sixth District Court of Appeals that found the use of an auction price was inappropriate in a forfeiture case. However, the Second District concluded that none of Bowshier’s arguments had merit.
Bowshier filed an appeal with the Ohio Supreme Court, raising several issues. The Supreme Court agreed to review Bowshier’s claim that the Second District wrongly dismissed his case given that he provided case law in his pro se brief to support his position about the value of the forfeited vehicles. The appeal will be heard in Putnam County at a special off-site session of the Supreme Court.
Case Law Presented, Claim Not Frivolous, Bowshier Argues
Bowshier states that a case is frivolous when it “lacks any basis in law or fact,” according to the U.S. Supreme Court, and when it “is not reasonably well-grounded in fact or warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law,” according to the Ohio Supreme Court.
The Second District determined that Erie Cty. Drug Task Force v. Cunningham (1994), from the Sixth District, didn’t support Bowshier’s claim because the court in that case didn’t hold a hearing on the forfeiture issue, while the trial court in Bowshier’s case did conduct a hearing. Bowshier counters, however, that the Sixth District’s rationale applies to his case. The Erie Cty. decision stated:
“It would be particularly inappropriate to rely on the auction price in a forfeiture case because R.C. 2933.41(C)(8) requires that the auction be without appraisal and without reserve. Such an auction is not an appropriate method to determine what a willing buyer would pay a willing seller when neither party is required to buy or sell.”
In a more recent case, the Sixth District also ruled that sales prices from forced sales should be rejected when calculating fair market value, Bowshier maintains. He also points out that the prosecutor in his case also suggested higher values for the vehicles than the trial court ordered.
Given the state’s own recommendation and the precedent from other court decisions, Bowshier argues his appeal on this issue wasn’t frivolous and asks the Ohio Supreme Court to order the appointment of a new lawyer to pursue the appeal on this issue.
Anders Isn’t Relevant in This Appeal, State Contends
The Sixth Amendment to the U.S. Constitution guarantees a person accused of a crime the right to an attorney. The Clark County Prosecutor’s Office points out that the U.S. Supreme Court and the Ohio Supreme Court have concluded that this right has limits. In general, a defendant in a criminal case has the right to have a lawyer appointed only for the first appeal. Noting that this is Bowshier’s fourth appeal, the prosecutor argues that Bowshier wasn’t entitled to an attorney this time.
“The trial court’s order setting the value of the 2001 truck and the 1995 van was part of post-sentencing proceedings not connected in any way with a ‘first appeal of right,’” the prosecutor’s brief states. “The trial court’s order also resolved post-judgment forfeiture claims. Accordingly, Defendant was not entitled to appointed counsel in the vehicle appeal under the Federal Constitution.”
Even though a lawyer was appointed for Bowshier, the Anders procedures don’t apply in this appeal because there wasn’t a constitutional right to counsel, the prosecutor maintains. Because there was no right to an attorney, the prosecutor argues Bowshier’s appointed lawyer had no duty to demonstrate that the appeal was “wholly frivolous” before withdrawing from the case and isn’t mandated to file a brief outlining possible legal arguments – both of which are required when Anders applies.
Bowshier did have the right, though, to file his own brief and to have the Second District rule on his arguments, which was done in this case, the prosecutor notes. Because Anders didn’t apply, the prosecutor adds that the appeals court wasn’t required to find the appeal frivolous to uphold the trial court’s order.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Jeffrey Bowshier from the Ohio Public Defender’s Office: Stephen Hardwick, 614.466.5394
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